The Doctrine of Pith and Substance signifies that if the substance of legislation falls within the legitimate power of a Legislature, the legislation does not become invalid merely because it incidentally affects a matter outside its authorised sphere. The phrase “Pith and Substance” means “true nature and character”. This doctrine relates to the violation of Constitutional delimitation of legislative powers in a Federal State. Under it, the Court ascertains whether the alleged encroachment is merely incidental or substantial. Thus, the doctrine of ‘pith and substance’ postulates that the impugned law is substantially within the legislative competence of the legislature that made it, but only incidentally encroaches upon the legislative field of another legislature.
No amount of care in phrasing the division of powers in a Federal scheme will prevent practical overlapping when the division comes to be applied to the variety and complexity of diverse legislation. The different aspects of life in society are not insulated from one another in such a way as to make it possible to abide by a mechanical application of the division of powers.
Application of the Doctrine
For applying the principle of pith and substance, regard is to be had to,
- To the enactment as a whole;
- To its main objects;
- To the scope and effect of its provision.
In the case of Ujagar Prints M/s v. Union of India, the Court held that the doctrine of pith and substance flows from the words in Article 246(1), namely, “with respect to any of the matters enumerated in List I”. The bottom line of the said doctrine is to look at the legislation as a whole and if it has a substantial connection with the entry, the matter may be legislated upon. Due weightage should be given to the words “with respect to” in Article 246, as they incorporate the doctrine of pith and substance for understanding the scope of legislative power. The doctrine of pith and substance is one of the general applications whenever legislation by a body with limited authority is impugned as ultra vires.
The doctrine means the true subject matter of the legislature. It was held that the expression “with respect to” in Article 246 brings in the doctrine of pith and substance in the understanding of the execution of the legislative power. If the legislation has a substantial and not merely a remote connection with the Entry, the matter may well be taken to legislation on the topic.
It has already been pointed out that notwithstanding the adoption of a threefold division of powers and notwithstanding the embodiment of the general rule of Federal supremacy (in Article 246), it has been held that some overlapping between the entries in the several lists was inevitable and that in cases of alleged encroachment, the doctrine of pith and substance of the legislation in question was to be determined.
Once it is found that in pith and substance, a law falls within the permitted field, any incidental encroachment by it on a field not within its ambit does not affect the competence of the concerned legislature to enact the law. In doing so the effect of an enactment is separated from the subject matter. If a State Act, otherwise valid, has an effect on a matter in List I, it does not cease to be legislation with respect to an Entry in List II or III.
In the case of Vijay Kumar Sharma v. the State of Karnataka, the Court held that if the doctrine of pith and substance can be applied to resolve the conflict between the two legislations under Union and State Lists, there is no reason why it cannot be applied to resolve the conflict between different entries in the Concurrent List. But, when there is an irreconcilable conflict between the two legislations, the Central Legislation will prevail. Before declaring the state law as ultra vires, every attempt should be made to reconcile the conflict.
Origin in Canada
In Canada, the doctrine was asserted in the case of Russel v. The Queen that whenever a complaint of encroachment by one legislature upon that of another was made- the true nature and character of the legislation in the particular instance under discussion must always be determined in order to ascertain the class subject to which it really belongs.
In Attorney General for Alberta v. Attorney General of Canada, the Judicial Committee was of the opinion that when legislation is not competent, for example, if it is respect of an entry within the Federal Legislature List, but the legislation is by a provincial legislature, then the question of “occupied field” that is to say, that the federal legislature has not legislated on it, is irrelevant. Occupied or not, the provincial legislation will be incompetent. The doctrine of pith and substance is the rule of ultra vires and the difference between the operation of that rule and the effect of the doctrine of “occupied field” was brought out in this case.
Is it applicable to Fundamental Rights?
In the context of fundamental rights, the Courts have discarded pith and substance rule and the violation of fundamental rights will be based on the “direct and inevitable” effect of a statutory provision. The test of pith and substance of the subject matter and of the direct or incidental effect of the legislation is relevant to questions of legislative competence, but they are irrelevant to the question of infringement of fundamental rights. The true test in such cases is whether the effect of the impugned action is to take away or abridge fundamental rights.
Analysis of the Doctrine of Pith and Substance in Indian cases
The application of the Doctrine is well illustrated in the case of Prafulla Kumar v. Bank of Commerce, where Lord Porter stated that “the question must be asked what in pith and substance is the effect of the enactment of which complaint is made and in what list is its true nature and character to be found.” In this case, the constitutional validity of the Bengal Money Lenders Act, 1940, which has provided for limiting the amount and the rate of interest recoverable by a lender on any loan, was challenged on the ground that it was ultra vires the Bengal Legislature. The High Court of Calcutta held that the Act was intra vires the Provincial Legislature, but on appeal to the Federal Court the decision of the High Court was reversed and the Act was held to be ultra vires the law-making powers of the Bengal Legislature. But on appeal to the Privy Council, it was held that the Act was not void either in whole or part as being ultra vires the provincial legislature. The Pith and Substance of the Act was being money lending, it came within List II, Entry 27, Government of India Act, 1935, and therefore was within the competence of the Provincial Legislature, and was not rendered invalid, because it incidentally affected matters reserved for the Federal Legislature, namely “promissory notes” in Schedule VII, List I, Entry 28. It is not possible to make a clean cut between the powers of the various legislatures; they are bound to overlap from time to time.
In the case of Subramanyam Chettiar v. Muthuswami Goudan, the Court held that “It must inevitably happen from time to time that legislation though purporting to deal with a subject in one list, touches also upon a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind observance to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a sphere outside their ambit. Hence the rule which has been evolved by the Judicial Committee, whereby the impugned statute is examined to ascertain its pith and substance or its “true nature and character,” for the purpose of determining whether it is legislation with respect to matters in this list or in that.”
In the case of State of Bombay v. F.N. Balsara, the constitutional validity of the Bombay Prohibition Act, 1949 was an issue. The question whether that Act fell under Entry 31 of List II of the Government of India Act, 1935 (corresponding Entry 8 of the Constitution), namely, “intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase, and sale of intoxicating liquors”, or under Entry 19 of List I (corresponding Entry 41 of the Constitution), namely, “import and export of liquors across customs frontier”, which is a central subject. The Court held that the Act was valid because the pith and substance of the Act fell under Entry 31 of List II, and not under Entry 19 of List I, even though the Act incidentally encroached upon the Central power of Legislation.
In the case of State of Rajasthan v. G. Chawla, the Court held that the Act of the State Legislature which restricted the use of sound amplifiers fell substantially within Entry 6, List II, which is regarding “Public health and sanitation”. The power to legislate in relation to public health includes the power to regulate the use of amplifiers as producers of loud noises when the right of such user, by the disregard of the comfort and obligation to others, emerges as a manifest nuisance to them. It does not fall within Entry 31 in the Union List, even though the amplifier is an apparatus for broadcasting and communication. The legislation in pith and substance being on a State matter, it was not invalid even if it incidentally encroached upon the subject of broadcasting or communication.
- D.D. Basu, Commentary on the Constitution of India, Part 12, 9th Edn, LexisNexis, 2018.
- V.N. Shukla, Constitution of India, 10th Edn, Eastern Book Company, pg 651-655 (2006).
- M.P. Jain, Indian Constitutional Law, 8th Edn, LexisNexis, (2018).
- Laskin, Canadian Constitutional Law, 1951.
- Prafulla Kumar v. Bank of Commerce, AIR 1947 PC 60: 74 IA 23
- Subramanyam Chettiar v. Muthuswami Goudan, AIR 1941 FC 47, 51
- State of Bombay v. F.N. Balsara, AIR 1951 SC 318
- State of Rajasthan v. G. Chawla, AIR 1959 SC 544.
- Vijay Kumar Sharma v. the State of Karnataka, AIR 1990 SC 2072
- Ujagar Prints M/s v. Union of India, AIR 1989 SC 516
- Attorney General for Alberta v. Attorney General of Canada,
- Russel v. The Queen, (1882) 7 AC 829 (839).
Priyadarshini hails from Christ University, Bangalore and she spends most of her time in debating, dancing and reading. Her Interest area lies in constitutional law and administrative law. For any clarifications, feedback, and advice, you can reach her at firstname.lastname@example.org